Ask An Agent / Model Release

This month several people have emailed ‘Ask an Agent’ about photographing people and model release. So I’ve decided to answer 3 of them all in one go.

If you have any questions you’d like to ask a photographers agent, whatever area of the industry you are in please email them to askanagent@lisapritchard.com and I’ll answer as many as I can next month. Questions can be on anything to do with the commercial photography industry, from the business side of things to the creative to the legal.

 When and why do photographers need to get a model release form signed?

 Bill Harrison, photographer.

If you are photographing people or selling imagery that portrays people, you need to be aware of certain moral rights and legal obligations.

This applies to professional models, people in the street, and friends and relatives. If you are shooting for a commercial client, you should be extra cautious when photographing people who will be recognisable in the final images.

You can cover yourself by getting a model release form signed or indemnifying yourself against third party claims in your terms and conditions of business, which you should attach to your estimates and invoices.

The two acts of law that protect the use of people in photography are the Misrepresention Act and the Defamation Act. The Misrepresention Act is infringed if the person is portrayed in a false light, or if a statement is made that could be offensive or cause distress to a reasonable person. It doesn’t necessarily have to have damaged the person’s reputation. The Defamation Act is infringed if the person is portrayed in a demeaning light that is untrue.

There is more likelihood in infringing these laws in commercial shoots than in editorial shoots. For example, an image that  is used to promote a medication for a psychological condition that the person depicted does not have, or promoting meat when the person portrayed is a vegetarian.  In commercial shoot production, the general rule is that the person who organises the models is responsible for gaining the necessary permissions.

If you are photographing professional models, it is crucial to get the details agreed in writing with their agency before the shoot. This will usually be in the form of a booking form that the model agency provides, which should clearly state the product or service they will be promoting, hours and fees agreed, and most importantly the exact final usage of images. If you have not clearly agreed the usage the client requires, the models are fully entitled to send you a bill for additional usage when they spot themselves being used on something that was not initially agreed.

It is equally important to agree usage with non-professional models, even if they are your best mates. A model release form can be used as a legally binding contract so get three copies signed: one for the model, one for you and one for the client.

How are we covered with crowd photography? It’s impossible to get model releases for everyone in a street scene for example.

 Jane Neophytou, photographer.

If the images are going to be used in a magazine or newspaper it is likely the images will be used as a matter of public interest, thus decreasing the chances of infringing the law ( see above)

Furthermore, it is generally accepted that magazines and newspapers accept responsibility for what they publish as they have control over what the images are used to illustrate- usually a story of pubic interest. Having said this it is advisable to indemnify yourself in your business terms and check the terms or contract you have been sent by the publisher.

If the usage is commercial, even if it is a street or crowd scene , you must get anyone who is recognisable model released as there is more likelihood of the images portraying the person/s in a false way. If you are commissioned to shoot a street scene for an ad agency, the options are to 'blur' the faces in post production of anyone who is recognisable, and /or use cast models (or assistants or friends) who have signed a model release to be in the foreground.

Who is responsible if you don’t get a model release, the photographer, the agency, or the client?

 Managing Director, a branding agency, anonymous

Who is legally responsible if there are any repercussions depends on what has been agreed in the business terms of both parties. In my terms and conditions for example I have a clause that says ‘ LPA/ Photographer is only responsible for third party clearances if it has been expressly agreed in writing’

Having said that, on commercial shoots it is the general rule that the person who organises the models is responsible for gaining the necessary permissions. Say for example you organised some models from a model agency, the paperwork and therefore the contractual obligations are between your branding agency and the model agency. If the photographer or agent took care of this , they would be contractually obliged instead.

Please Note:

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This advice should be taken as a guide only. Lisa Pritchard and LPA takes no responsibility for any omissions or errors. Please seek professional legal advice should you require it.